Interference 104,066
ambiguous to determine its meaning. Teleflex, Inc., v. Ficosa N. Am. Corp., 299 F.3d
at 1324, 63 USPQ2d at 1380; Hockerson-Halberstadt, Inc. v. Avia Group International,
Inc., 222 F.3d 951, 955, 55 USPQ2d 1487, 1490 (Fed. Cir. 2000). However,
In the absence of an express intent to impart a novel meaning to claim terms, an
inventor’s claim terms take on their ordinary meaning. We indulge a “heavy
presumption” that a claim term carries its ordinary and customary meaning
[citations omitted]. Teleflex, Inc., v. Ficosa N. Am. Corp., 299 F.3d at 1324, 63
USPQ2d at 1380.
Turning first to Lee’s claimed method of treating cancer cells, we find that said
method comprises a single step, i.e., Lee’s claims only require the introduction of a
wild-type p53 tumor suppressor gene into mammalian cancer cells lacking endogenous
wild-type p53 protein in a manner whereby the neoplastic phenotype of said cancer
cells is suppressed.10 Lee’s dependent claim 4 contains the limitation that the
mammalian cell have a mutated p53 tumor suppressor gene, and dependent claim 6
recites several mammalian cancer cells which contain a mutated p53 gene.11
As to Lee’s contention that its claims are directed solely to a therapeutic method
10 Lee’s claim 1 is identical to Count 1. See page 4, above.
11 Lee’s claims 4 and 6 read as follows:
4. The method of claim 1 or 2, wherein the mammalian cancer cell
having no endogenous wild-type p53 protein has a mutated p53 tumor
suppressor gene.
6. The method of claim 1 or 2, wherein the mammalian cancer cell is
an osteosarcoma cell, lung carcinoma cell, lymphoma cell, leukemia cell,
soft-tissue sarcoma cell, breast carcinoma cell, bladder carcinoma cell or
prostate carcinoma cell.
As discussed above, Lee’s claim 1 is identical to Count 1.
10
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